MELISSA K. RAMIN v. KURT P. RAMIN
(SC 17316)
(SC 17319)
Supreme Court of Connecticut
Argued September 20, 2005—officially released February 20, 2007
Borden, Norcott, Katz, Palmer, Vertefeuille, Zarella and Sullivan, Js.*
* This case originally was argued before a panel of this court consisting of Justices Borden, Norcott, Palmer, Vertefeuille and Zarella. Thereafter, the court, pursuant to
James Ryan Mulvey, for the appellee (defendant).
Opinion
BORDEN, J. The plaintiff, Melissa K. Ramin, appeals from the judgment of the trial court dissolving her thirty year marriage to the defendant, Kurt P. Ramin. On appeal, the plaintiff claims that the trial court: (1) improperly failed to adjust her proportionate share of the defendant‘s retirement assets after acknowledging an error in its initial determination of their value; (2) improperly relied on Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992), in ordering her to be fully responsible for her own attorney‘s fees because she had suffi-
The record reveals the following relevant facts. The parties were married on December 30, 1972.2 In 1997, the parties effectively separated when the defendant was transferred by his employer to London, England, and the plaintiff remained at the marital home in Weston. In September, 1999, the plaintiff commenced this action seeking dissolution of the marriage and other relief.
The court ordered the marriage dissolved. In accordance with its findings, the court also made the following financial orders: (1) that commencing September 1, 2003, the defendant make monthly payments to the plaintiff in the amount of $5000, until the death of either party, the remarriage of the plaintiff, or August 31, 2007, whichever shall occur sooner; (2) that the defendant convey his interest to the plaintiff, via quitclaim deed, in the jointly owned marital home in Weston; (3) that the defendant convey his interest to the plaintiff, via quitclaim deed, in jointly owned real estate at 750 State Street in Eaton Rapids, Michigan; (4) that the defendant retain his interest in inherited real property in Liebenwalde, Germany; (5) that the defendant retain his interest in an apartment in Düsseldorf, Germany; (6) that each party retain personal property and home furnishings in their respective residences; (7) that each party retain their respective automobiles; (8) that each party retain, except as otherwise set forth in the court‘s orders, their respective savings, checking and money market accounts; (9) that the defendant retain his
The plaintiff appealed to the Appellate Court from the judgment of the trial court. Thereafter, the defendant moved to reargue and the trial court granted the plaintiff‘s motion for articulation and granted a hearing on the defendant‘s motion to reargue. Following the hearing, the trial court denied the defendant‘s motion for reargument and clarified its original decision. The plaintiff then filed a separate appeal after the trial court‘s ruling on the motion to reargue. The Appellate Court subsequently granted the plaintiff‘s motion to consolidate the two appeals. Thereafter, we transferred the consolidated appeals to this court pursuant to
I
We first consider the plaintiff‘s claim that the trial court abused its discretion in declining to rule on her motion for contempt and sanctions, filed in court on August 14, 2002, based on the defendant‘s repeated failure to comply with the court‘s discovery orders. Because we conclude that the trial court had no discretion to mark the plaintiff‘s motion “off” the calendar, we agree with the plaintiff that the court‘s action was improper.
The following additional facts are relevant to our resolution of this claim. On August 2, 2000, the plaintiff filed her first discovery request for disclosure of facts and production of records. After the defendant failed to comply with her request, the plaintiff filed a motion for contempt. On October 23, 2000, the court ordered the defendant to comply with the discovery request. When the defendant produced, in response to the court‘s order, a computer disk that the plaintiff claimed
When the motion came on for hearing before the court on September 9, 2002,4 the plaintiff explained that she had filed the motion because, although the defendant had produced some documents since the mediation that had taken place on February 22, 2002, she had not received the majority of the production that the court had ordered at that time. She also reminded the court that in April, 2002, the court had held a discovery status conference in the matter, during which the defendant had acknowledged that discovery remained incomplete, yet the plaintiff had not since received any further production from the defendant.
After hearing the plaintiff‘s brief presentation of some of the procedural background that had prompted her to file the fifth motion for contempt, the court, noting that the action had been initiated in late September, 1999, stated that it “probably is the oldest case on my docket,” and that the case had “been going on far too long, folks. This case is going to be tried.” When informed that trial dates had been set for December 1, 2 and 3, 2002, and a deposition of the defendant had
The plaintiff‘s attorney then again reminded the court that she still had not received documents and authorizations requested in the August 14, 2002 motion, and asked the court: “[W]hy does it then become my burden to say again and again and again we are still waiting for these documents, they haven‘t come?” The plaintiff‘s attorney then attempted to bring to the court‘s attention some of the specific items of discovery that the defendant had not produced despite court orders to do so, referring specifically to Citibank Visa statements, American Express statements and a copy of the defendant‘s 1999 amended tax return, all of which had been requested but not produced, despite court orders for compliance.
When the plaintiff‘s attorney attempted to continue, the court said: “Folks, stop it. . . . [A]re you getting the message from me? Stop it. I really don‘t want to hear anymore about this. Three years is enough to get
“I‘ve got . . . 200 cases on my docket that are over one year old. I inherited that, and I have not been able to move that log jam in [the] two years that I‘ve been sitting here. And I‘m looking through this file. This whole thing is all about . . . discovery. That‘s what you‘ve been fighting.
“[T]his case should have been tried two years ago. So try it, folks. Get your depositions done. . . . [Y]ou‘re scheduled for trial. Just take your best shot. . . . [T]here‘s no such thing as a [100] percent job. There‘s just no such thing anymore . . . .”
When the plaintiff‘s attorney attempted to respond, the court interrupted and said: “I‘m sure you have a core of good, vital information that you can work with. . . . It‘s time to get this thing done, and . . . if I start to have this hearing, I‘ll be . . . all morning on this, tomorrow, going through this one line item at a time. . . . We just don‘t have the manpower, the resources, to do this.”
The plaintiff‘s attorney then stated to the court: “You‘re telling me we have a core of documents, but I don‘t. I don‘t have one check register from [the defendant]. I don‘t know where he writes his check[s]. . . . I don‘t have that information.” The court responded: “[T]hen you take his deposition in October and you ask some of those questions, and maybe we can zero in on some of this, but I can‘t take a shotgun blunderbuss approach to discovery on a three year old case. It‘s got to be tried. . . . I‘ve issued the largest sanctions I have issued in my two and a half years on the bench against [the defendant]. All right? So I think it‘s time to try this case. That‘s the message I have for both of you. Take
The abuse of discretion standard applies to a trial court‘s decision on a motion for contempt. Sablosky v. Sablosky, 258 Conn. 713, 721, 784 A.2d 890 (2001). The facts of this case, however, present the question of whether a trial court has the discretion to refuse to consider a party‘s motion for contempt. We have already squarely addressed this issue, concluding that, in the absence of “an extreme, compelling situation,” a trial court that has jurisdiction over an action lacks authority to refuse to consider a litigant‘s motions.
In Ahneman, the defendant had filed an appeal from the trial court‘s postjudgment order modifying alimony and support. Id., 473. While the appeal was pending, the defendant filed in the trial court a number of motions that concerned both financial and nonfinancial issues. Id., 474. The trial court specifically stated that it would consider the defendant‘s motions regarding nonfinancial issues but refused to consider her motions dealing with financial issues. Id., 476.
On the ultimate appeal to this court,7 we concluded that “the trial court lacked authority to refuse to consider the defendant‘s motions.” Id., 482. In support of our conclusion, we first specifically held that, in accordance with well established jurisprudence in both the family and nonfamily areas, the filing of an appeal did not deprive the trial court of jurisdiction to consider motions raising postjudgment issues. Id., 483.
We then addressed the merits of the trial court‘s refusal to consider the defendant‘s motions. We stated: “More fundamentally, basic principles of jurisprudence refute the plaintiff‘s proposition that a trial court has discretion, based on notions of judicial efficiency, to decline to exercise its jurisdiction by refusing to consider certain motions. Courts are in the business of ruling on litigants’ contentions, and they generally oper-
This reasoning of Ahneman applies directly to the present case. In refusing to decide the motion before it by marking it “off,” the trial court abdicated its fundamental obligation to decide all matters properly presented to it. Just as in Ahneman, the court had the case and the plaintiff‘s motion properly before it. Just as in Ahneman, it was the court‘s duty to determine the questions raised by the motion. Indeed, just as in Ahneman, this was a marital dissolution case, and the plaintiff had a compelling need for enforcement of the court‘s prior discovery orders in order to prepare and to try her case; this was part of the court‘s duty of “continuing dispute resolution . . . .” Id., 484.
We also recognized, in Ahneman, however, “that exceptions to the general rule that a trial court must consider and decide on a reasonably prompt basis all motions properly placed before it may exist in an extreme, compelling situation. For example, we do not rule out the possibility that a trial court may have
There is no claim that the plaintiff‘s attempt to enforce the court‘s prior orders of discovery was harassing or vexatious, nor did the trial court suggest that such a conclusion formed the basis of its decision. The question, therefore, is whether this case presents some “other [extreme and compelling circumstance] in which a trial court properly could refuse to consider” the plaintiff‘s motion. Id., 485. We conclude that it does not. In order to understand why that is so, it is necessary to review the plaintiff‘s motion and the court‘s response to it.
This was a case in which the financial situation of the defendant was extremely complicated. Furthermore, the complications were exacerbated by the following facts: it was the defendant who had sole access
In addition, it is undisputed that the case was rife with discovery misconduct by the defendant. During the pendente lite process, pursuant to four motions for contempt by the plaintiff, the court had ordered the defendant to make disclosures that he had failed to make, and had severely sanctioned the defendant. In this connection, it is significant that, in the proceedings at issue on September 9, 2002, the plaintiff was not attempting, at a late stage, to obtain additional discovery that she had failed to request earlier; she was attempting merely to secure, prior to the trial, the discovery that the court already had ordered the defendant to supply to her. Thus, she merely was requesting that the court enforce the orders that it earlier and repeatedly had entered.
All of these facts made both the plaintiff‘s need for full discovery and, correspondingly, the defendant‘s obligation to supply full and fair disclosure compelling. See Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991). Furthermore, it is clear from the record that the great portion of the delay in the case from the time of its filing in September, 1999, to the hearing in September, 2002, is fairly attributable, not
A brief examination of the court‘s expressed reasons for refusing to consider the plaintiff‘s motion reveals that the court did not base its refusal on any extreme and compelling circumstance that would have justified its decision. In summary, the court‘s comments reveal the following reasons for not ruling on the plaintiff‘s motion: (1) because the motion was lengthy and detailed, it would consume too much of the court‘s time to consider it, particularly in light of the court‘s backlogged docket; (2) the discovery stage of the case already had been pending too long, three years, and, therefore, the case should go to trial without further delay; (3) the plaintiff had enough information to go forward and should take her “best shot,” because “there‘s no such thing as a [100] percent job“; and (4) the imposition of further sanctions on the defendant would not “help,” that is, they probably would not result in the defendant‘s cooperation. None of these reasons proffered by the court in support of its refusal to consider the plaintiff‘s motion presents an extreme and compelling circumstance that would have justified the court‘s refusal to consider the plaintiff‘s motion, which was properly before it.
We explain briefly why each of the court‘s proffered reasons for its refusal to entertain the plaintiff‘s motion does not justify its decision. First, a court may not refuse to consider a motion in one case because such consideration will delay the disposition of other cases filed by other litigants and because the court believes it has neither the time nor the resources to address a lengthy and detailed motion. On the contrary, “[c]ourts are in the business of ruling on litigants’ contentions . . . .” Ahneman v. Ahneman, supra, 243 Conn. 484.
Second, under the circumstances of the present case, the imposition of a three year time limit on the discovery process ignores the fact that it was the defendant‘s abuse of the discovery process—the very abuse that was the subject of the motion—that was responsible for the delay. Such a rule effectively penalizes the innocent party, and rewards the party who has abused the discovery process.8 The imposition of a three year limit was
Third, the court‘s suggestion that the plaintiff had secured enough discovery ignores the plaintiff‘s claims to the contrary—again, the subject of the very motion that the court refused to consider. Moreover, the court‘s advice to counsel that she should take her “best shot,” and that the plaintiff should not expect 100 percent performance is not reconcilable with the ethical duty of zealous representation that counsel owes to a client. We have admonished counsel that they are responsible for “diligent investigation and preparation” and “for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client‘s rights and interests . . . .” (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 176, 646 A.2d 195 (1994). In fulfilling this responsibility, an attorney must attempt to present her client‘s case on a “[100] percent” basis, at least in the sense stated in this context, namely, that an attorney will give the client a “[100] percent” effort on her behalf. An attorney and client may agree between themselves to limit discovery efforts, or other litigation procedures, on a cost benefit basis; but that does not give the court the power to impose such a limit on such a basis. Furthermore, a suggestion that counsel should give less than 100 percent performance places the trial counsel in a marital dissolution case in a very difficult, if not impossible, position. We have held that, in a legal malpractice claim against a marital attorney, the defendant attorney may be held to be negligent for failure properly “to discover and value the [client‘s] business interests and related assets . . . .” Id., 181-82.
Subsequent proceedings in the present case illustrate precisely how a court‘s abdication of its responsibility to oversee the discovery process, when confronted with a consistently noncompliant party, benefits the wrongdoer and encourages him to persist in his noncompliance. Specifically, at the defendant‘s subsequent deposition, rather than utilizing that time to question the defendant based on information that he had provided and using that information to develop a trial strategy, the plaintiff was forced to spend her time with the defendant to question him regarding the very same documents the production of which already had been ordered by the court on numerous occasions in response to her multiple motions for contempt. Furthermore, the defendant‘s conduct during the deposition was defiant, disrespectful and uncooperative. During the course of the deposition, the defendant responded to the plaintiff‘s requests for already requested documents by claiming that: he had already produced the documents; he believed that his employer, and not he, was responsible for producing requested documents; in his judgment, the plaintiff did not need certain requested information; he had produced the requested documents at the last deposition; and the volume of requested documents was too vast to allow him reasonably to comply with production requests. At other times, the defendant responded to requests for documents by becoming agitated, complaining that the plaintiff‘s requests were “crazy,” “nuts” and “sick.” When the plaintiff‘s counsel asked the defendant to produce his
Most importantly, although the defendant had produced some of the requested documents during his deposition, the plaintiff still had not received full production at the time of trial. At the beginning of trial, the plaintiff filed a motion in limine seeking the following relief, pursuant to
The court declined to grant the plaintiff‘s motion in its entirety. Instead, the court stated that it would rule
In the end, then, the plaintiff did receive partial relief for the defendant‘s steadfast refusal to comply with the court‘s prior orders of production. We cannot say, however, whether the plaintiff would have been successful in discovering further evidence of the defendant‘s concealment of assets, a success which in turn could have resulted in a greater disallowance of the defendant‘s explanations in response to the plaintiff‘s claims, and, therefore, in the plaintiff‘s receiving a larger portion of the marital estate. We cannot answer that question because the court‘s refusal to consider the plaintiff‘s August 14, 2002 motion for contempt permitted the defendant to stonewall the plaintiff up to and including the trial. This dilemma aptly illustrates why as a matter of policy a court should not have discretion, in the absence of extreme and compelling circumstances, to refuse to consider a party‘s motion properly before it.
We next turn to the remedy for the court‘s improper refusal to consider the plaintiff‘s motion. Because the case already has been decided in the wake of that abuse,
First, it would be grossly unfair to the plaintiff to require her to establish precisely how she was harmed in proving her case by not having access to the extensive list of already ordered discovery materials to which she never gained access solely as a result of the court‘s refusal to consider her motion. In other words, the court already had ruled that she was entitled to discovery of those materials; see footnote 3 of this opinion; but then improperly refused to enforce its prior orders. She reasonably cannot be expected to establish how she was harmed in proving her case by reference to materials to which she was, by virtue of judicial orders, entitled to see but nonetheless never saw. Indeed, to take but one example, the trial transcript shows that the plaintiff repeatedly, but unsuccessfully, attempted to prove, by reference to various financial records, that the defendant‘s $450,000 promissory note to Landgren was fraudulent and that, therefore, the payments that he had made on that note were simply diversions of marital assets. Without the documents that the plaintiff had sought through her motion, it is impossible to determine—and it would be equally impossible for the plaintiff to establish—whether the plaintiff‘s effort would have been successful had the court heard her motion and decided it in her favor. Thus, the defendant was
Second, placing the burden in this respect on the defendant who failed to comply fully with the court‘s orders is consistent with our decision in Billington v. Billington, supra, 220 Conn. 221, in which we articulated the requirement of full and frank mutual disclosure in marital cases. In doing so, we analogized the marital relationship, even in the context of a dissolution case, to “the special relationship between fiduciary and beneficiary,” insofar as the requirement of disclosure is concerned. Id. Just as the relationship between fiduciary and beneficiary “compels full disclosure by the fiduciary“; id., citing Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 407-409, 456 A.2d 325 (1983); “we believe that no less disclosure is required of such parties when they come to court seeking to terminate their marriage.” Billington v. Billington, supra, 221. Similarly, just as, once it has been shown that a fiduciary has engaged in self-dealing, he has the burden to establish the fairness of the transaction by clear and convincing evidence; see Cadle Co. v. D‘Addario, 268 Conn. 441, 457, 844 A.2d 836 (2004); so, as in the present case, when the defendant has breached his fiduciary-like obli-
In the present case, the defendant has not attempted to establish such lack of harm; his sole contention on this claim by the plaintiff is that the court did not abuse its discretion in refusing to consider the plaintiff‘s motion. Because, as we have stated many times, the financial orders in a marital case are like a mosaic; see, e.g., Grimm v. Grimm, 276 Conn. 377, 386, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006); Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005); Morris v. Morris, 262 Conn. 299, 307, 811 A.2d 1283 (2003); and because the defendant has not established that the mosaic likely would have been the same despite his failure to disclose as ordered by the court and despite the court‘s refusal to consider the plaintiff‘s motion, the entire mosaic must be refashioned. Accordingly, the judgment must be reversed as to the financial orders and remanded for a new trial on the financial issues.
II
Because it is likely to arise on remand, we next address the plaintiff‘s claim that the trial court improperly interpreted our decision in Maguire v. Maguire, supra, 222 Conn. 32, to require that the court should not award attorney‘s fees when a marital party is financially able to pay them, and the payment of the fees would not undermine the other financial orders, even in a case in which the party seeking attorney‘s fees incurred those fees because of the other party‘s misconduct. In the alternative, the plaintiff argues, if the trial court correctly applied the existing law under Maguire, we should now recognize an exception to the rule to afford the trial court the discretion to award such fees as part
We conclude that the trial court‘s ruling declining to award attorney‘s fees as part of the final financial orders was based on its accurate reading of Maguire. A fair reading of the court‘s memorandum of decision establishes that it simply applied Maguire in denying the plaintiff‘s request for attorney‘s fees, which was specifically based on the defendant‘s litigation misconduct, because she had ample liquid funds to pay her attorneys.12 Thus, the court never exercised any discretion as to whether to make such an award based on the claimed misconduct and on whether that misconduct had already been adequately addressed by its prior orders. We also conclude, however, that Maguire should be expanded to provide a trial court with the discretion to award attorney‘s fees to an innocent party who has incurred substantial attorney‘s fees due to the egregious litigation misconduct of the other party when the trial court‘s other financial orders have not adequately addressed that misconduct.
We relied on these statutory provisions in Maguire, in concluding that the trial court improperly had ordered the defendant to reimburse the plaintiff for $50,000 in attorney‘s fees. Maguire v. Maguire, supra, 222 Conn. 45. In our analysis of the statutory language and the relevant case law interpreting the statute, we stated: “[A]mple liquid funds [are] not an absolute litmus test for an award of counsel fees. . . . [T]o award counsel fees to a spouse who had sufficient assets would be justified, if the failure to do so would substantially undermine the other financial awards.” (Citation omitted; internal quotation marks omitted.) Id., 44. We then determined that the plaintiff had more than $500,000 in liquid assets at her disposal, that the trial court had made no finding that an award of attorney‘s fees was necessary to avoid undermining its other financial orders, and that the record did not support such a finding. Id., 44-45. Therefore, we reversed the award of attorney‘s fees to the plaintiff. Id., 45. Thus, the general rule under Maguire is that an award of attorney‘s fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney‘s fees; or (2) the failure to award attorney‘s fees will undermine the court‘s other financial orders. See id., 44.
Under Maguire, in a case such as the present one, in which an innocent party has incurred substantial attorney‘s fees as a result of the other party‘s litigation misconduct, the innocent party must nevertheless bear
In a subsequent decision that did involve both allegations and findings of litigation misconduct, we implicitly acknowledged that an expansion of Maguire would be appropriate. In Jewett v. Jewett, 265 Conn. 669, 694, 830 A.2d 193 (2003), we sustained an award of attorney‘s fees that was based, in part at least, on the fact that “much of the plaintiff‘s accrued or already paid legal fees have been caused by the defendant‘s failure . . . promptly and candidly [to] comply with numerous motions and discovery.” (Internal quotation marks omitted.) Thus, in Jewett, we implicitly acknowledged that a party‘s litigation misconduct can form part of the basis of such an award of attorney‘s fees.
Our conclusion that a court should have the discretion to award attorney‘s fees to a party who incurs those fees largely due to the other party‘s egregious litigation misconduct is consistent with the reasoning of our decision in Billington v. Billington, supra, 220 Conn. 212. In that case, we explicitly recognized the requirement of full and frank disclosure between marital litigants. Id., 221. We drew that requirement from
Public policy and principles of equity further support our expansion of the Maguire rule. Allowing recovery for attorney‘s fees incurred due to litigation misconduct will discourage the recalcitrant marital litigant from evading his obligations of full and frank disclosure, and will encourage compliance with those obligations. When a marital litigant who does play by the rules has to expend her own funds to pay her attorneys significant amounts of money to enforce discovery orders against, and uncover assets hidden or transferred by, the other marital litigant who is flouting those rules, and when other orders of the court have not adequately addressed
The present case aptly illustrates the need for expanding Maguire to allow a trial court the discretion to award attorney‘s fees to address the litigation misconduct of a marital litigant. The record contains ample evidence of egregious litigation misconduct by the defendant, both before and during the trial, that would form the basis of such an exercise of discretion. The pretrial conduct of the defendant in failing to fulfill his obligations of full and frank disclosure, and of compliance with orders of the court, has been amply discussed in part I of this opinion.13
Furthermore, in its memorandum of decision, the court specifically addressed additional pretrial litigation misconduct by the defendant, namely, diversion
With respect to the defendant‘s misconduct during the trial, in its decision the court explicitly noted the defendant‘s pattern of deceit and disdain for the legal process. The court stated that the defendant “is a well educated, very intelligent and sophisticated international professional. However, instead of emphasizing these attributes, he has carried the pattern of deceit right into the courtroom, where, with barely concealed disdain for the legal process, he repeatedly feigned misunderstanding of plain English (the lingua franca of international business dealings), engaged in linguistic gymnastics, and had selective lapses of memory. He had to be repeatedly admonished by the court, and accordingly, the court found him to be less than credible in much of his testimony.”
In addition, during the trial, the court several times commented on the defendant‘s misconduct. For example, at one point the court noted the defendant‘s “obstructive, obstreperous behavior” on the witness
As we already have noted, in denying the plaintiff‘s request for attorney‘s fees based on the defendant‘s litigation misconduct, the court correctly interpreted the existing rule under Maguire in concluding that it did not have the discretion to consider such an award. In light of our decision today, however, the court will, on the remand, have such discretion. This does not mean, and we do not say, that the court must award such fees. Nor does it mean that the court may award such fees if it determines that the defendant‘s misconduct adequately has been addressed by other orders of the court. It means only that, when a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts of money for attorney‘s fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorney‘s fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of an award would undermine the court‘s other financial orders.
The defendant and the dissent contend, however, that this expansion of Maguire, namely, allowing a trial court the discretion to award attorney‘s fees incurred by one party as a result of the egregious litigation misconduct of the other party when the court‘s other financial orders have not adequately addressed that misconduct, amounts to a sanction and violates the
The sole case cited by the defendant in support of his claim that this expansion of Maguire improperly imposes a sanction on parties, Dobozy v. Dobozy, 241 Conn. 490, 697 A.2d 1117 (1997), is distinguishable. In that case, the issue was “the extent to which . . .
The judgment is reversed as to the financial orders only and the case is remanded for a new trial on the financial issues.
In this opinion NORCOTT, KATZ and PALMER, Js., concurred.
ZARELLA, J., with whom VERTEFEUILLE and SULLIVAN, Js., join, dissenting. The majority reverses the trial court‘s judgment as to the financial orders on the ground that the court improperly failed to rule on a pretrial motion for contempt and sanctions by the plaintiff, Melissa K. Ramin. The majority also expands the rule in Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992), to permit an award of attorney‘s fees for the purpose of compensating a party for the litigation misconduct of the opposing party. I disagree with both of these holdings because the first unwisely interferes with the trial court‘s broad discretion in the administration and management of discovery matters and the second ignores the applicable statutes, rules of practice and case law that govern an award of attorney‘s fees. Accordingly, I respectfully dissent.
I
I begin with the plaintiff‘s motion for contempt and sanctions. The majority concludes, on the basis of Ahneman v. Ahneman, 243 Conn. 471, 706 A.2d 960 (1998), that in marking the motion off the calendar, the trial court refused to decide the issues raised therein and thus abdicated its fundamental obligation to decide all matters properly placed before it. I disagree.
At the commencement of the trial, the plaintiff filed a motion in limine requesting that “certain financial matters regarding which discovery was sought from the [d]efendant and with regard to which he failed and refused to comply, shall be established for the purposes of the action in accordance with the claims of the [p]laintiff.” The financial matters to which the motion referred included assets that the defendant had identified during his deposition, including funds that he had transferred to his girlfriend in Germany and a $70,000 retirement account that he had maintained in the United Kingdom. The motion also sought to preclude the defen-
In explaining her reasons for filing the motion, the plaintiff‘s counsel observed that, during the September 9 hearing, the court had “grown quite understandably frustrated with the discovery process and requested that we try and address it all at the time of trial.” (Emphasis added.) She then described the defendant‘s continuing refusal to cooperate during his five day deposition and his noncompliance with her requests for the production of documents. When the court asked the plaintiff‘s counsel how she wanted the court to deal with the defendant‘s ongoing discovery misconduct, she asked that it grant the motion in limine, stating: “[T]hat would seem to me to be the perfectly appropriate resolution.” She also requested attorney‘s fees to sanction the defendant for the additional legal expenses incurred to obtain the information he had refused to produce.
The court responded that it would consider specific evidence regarding the dissipated assets on a case-by-case basis as it was introduced at trial, rather than granting the motion in limine at that time. The court also agreed to consider the plaintiff‘s request for attorney‘s fees to sanction the defendant for his noncompliance with discovery. The plaintiff‘s counsel expressed satisfaction with the court‘s response and declared that she was prepared to try the case.
Thereafter, the plaintiff requested on two separate occasions that sanctions be imposed against the defendant. On the first occasion, the defendant testified on direct examination that he had transferred approximately $194,000 out of the marital estate to his German girlfriend, Martina Meyer, without the plaintiff‘s consent
On the second occasion, the court granted the plaintiff‘s motion for sanctions with respect to the defendant‘s proposed testimony on cross-examination regarding his removal of an additional $177,248 out of the marital estate without the plaintiff‘s knowledge or consent. The court explained: “I‘m specifically tying [this decision] into the original motion in limine and I‘m specifically tying it into [the defendant‘s] responses and his behavior and what this court deems to be a calculated . . . effort to obstruct the discovery process and to move this case forward.” In its subsequent memorandum of decision, the court also explained that it had considered the defendant‘s noncompliance with discovery when it formulated the financial orders distributing the marital estate.
“As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did. . . . In reviewing a claim that the court has abused this discretion, great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .”
“At the same time . . . [d]iscretion imports something more than leeway in decision-making. . . . It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . [T]he court‘s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.
The trial court in the present case did not refuse to consider the plaintiff‘s motion for contempt and sanctions, but, rather, conducted a hearing on September 9, 2002, for that very purpose. At the conclusion of the hearing, the court chose, in the reasonable exercise of its discretion pursuant to our rules of practice; see
It is the duty of the reviewing court to make every reasonable presumption in favor of the trial court‘s ruling. See Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 15. I would therefore conclude, mindful that the rules of practice are designed to facilitate business and advance justice, that the trial
The majority maintains that our decision in Ahneman compels a different result. I emphatically disagree on the ground that Ahneman is factually distinguishable. In that case, the defendant filed several postjudgment motions concerning financial and nonfinancial matters. Ahneman v. Ahneman, supra, 243 Conn. 474. At short calendar, the trial court rendered an oral decision declining to consider the motions. Id., 475. Thereafter, the defendant moved for reconsideration and reargument. Id., 475-76. Following reargument, the court announced that it would consider the motions concerning nonfinancial matters, but would not consider the motions regarding financial matters. Id., 476. The court explained: “As far as the money issues are concerned, it was my opinion that that was the law of the case that was established by the contested hearing we had over the modification and the contempt. That ruling, I think, would cover these other money issues. . . . I will not hear anything on monetary aspects because I think the law of the case was established as a result of the earlier hearing. It‘s now on appeal. The nonmonetary aspects I will set down for a hearing. . . .” (Internal quotation marks omitted.) Id., 476-77 n.7.
On appeal to this court, we initially determined that we had jurisdiction to review the defendant‘s claim because the trial court‘s “decision not to consider the defendant‘s motions” was the functional equivalent of a final judgment. Id., 480. We stated that, “[l]ike a formal denial, the effect of the court‘s decision refusing to consider the defendant‘s motions during the pendency of the appeal was to foreclose the possibility of relief from the court on those issues, unless and until the resolution of the appeal required further proceedings. Indeed, the refusal to consider a motion is more deserv
We then considered whether the trial court had discretion to refuse to consider the motions and concluded that it did not. We stated that, “where a court is vested with jurisdiction over the subject-matter and . . . obtains jurisdiction of the person, it becomes its . . . duty to determine every question which may arise in the cause . . . . [A] trial court must consider and decide on a reasonably prompt basis all motions properly placed before it [except] in an extreme, compelling situation,” such as “to prevent harassing or vexatious litigation” or in “other [undefined] circumstances . . . .” (Citation omitted; internal quotation marks omitted.) Id., 484-85. We ultimately determined that no extenuating circumstances existed in Ahneman that would have justified the trial court‘s refusal to consider the disputed motions. Id., 485.
The present case is distinguishable from Ahneman because the trial court‘s decision to mark the motion off the short calendar was not a final judgment that foreclosed the possibility of relief or that denied the plaintiff an opportunity to persuade the court that she was entitled to such relief. Unlike in Ahneman, the court in the present case exercised its jurisdiction when it conducted a hearing on the merits of the plaintiff‘s motion, listened to the parties’ arguments and advised the plaintiff at the conclusion of the hearing that she could seek future relief if the defendant did not comply with her requests for discovery during his deposition. When the defendant persisted in his misconduct by failing to cooperate fully at his deposition, the plaintiff
I also disagree with the majority‘s conclusion that the burden of establishing harm should be shifted from the plaintiff to the defendant “under the unique circumstances of this case . . . .” See Bovat v. Waterbury, 258 Conn. 574, 594, 783 A.2d 1001 (2001) (“[i]n order to establish reversible error, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse“). According to the majority, the circumstances in this case are “unique” because of the defendant‘s offensive behavior during his deposition. He was disrespectful and defiant, threw his wallet at the plaintiff‘s counsel when she asked him to produce his credit cards, repeatedly used obscenities and read a magazine during the proceeding. I would submit, however, that the defendant‘s behavior at the deposition was irrelevant to the issue of harm because it occurred after the trial court‘s consideration of the motion for contempt and sanctions, and, consequently, had no connection to the court‘s prior action.5 Moreover, the defendant‘s bad behavior during the deposition had no
The majority provides two additional reasons for imposing such a requirement. The first is that it would be unfair to ask the plaintiff to demonstrate how she was harmed when she did not have access to important discovery materials, not identified by the majority, as a result of the court‘s decision to mark her motion “off.” As previously discussed, however, the plaintiff had very specific reasons for seeking certain documents and was quite capable of explaining why the lack of that information would prevent her from making a more persuasive case against the defendant. In addition, the court did not rule that the plaintiff could not seek future relief as to the discovery materials described in her motion, such as the documents cited by the majority pertaining to the defendant‘s $450,000 promissory note to Theodora Landgren. Indeed, such materials were exactly the type of information to which the court referred when it said that it would be willing to entertain a future hearing on the motion. Moreover, it was the plaintiff who decided not to seek another hearing on the motion following the defendant‘s deposition, despite the invitation from the court, and it was the plaintiff who stated at trial that the sanctions she sought, and ultimately obtained, against the defendant constituted a “perfectly appropriate resolution” of the parties continuing discovery dispute. In sum, the majority‘s conclusion that our long held standard for proving harm should be
The majority also justifies placing the burden to prove a lack of harm on the defendant by explaining that it is consistent with our reasoning in Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991). I disagree. The majority states that Billington applies because, in that case, “we analogized the marital relationship, even in the context of a dissolution case, to the special relationship between fiduciary and beneficiary, insofar as the requirement of disclosure is concerned.” (Internal quotation marks omitted.) The majority then declares: “[J]ust as, once it has been shown that a fiduciary has engaged in self-dealing, he has the burden to establish the fairness of the transaction by clear and convincing evidence; see Cadle Co. v. D‘Addario, 268 Conn. 441, 457, 844 A.2d 836 (2004); so, as in the present case, when the defendant has breached his fiduciary-like obligations of discovery to the plaintiff as ordered by the court, he should bear the burden of establishing that his breach of that obligation did not harm the beneficiary of that obligation.” This argument can only be described as specious.
The quoted passage from Billington declares: “We have recognized . . . in the context of an action based upon fraud, that the special relationship between fiduciary and beneficiary compels full disclosure . . . Although marital parties are not necessarily in the relationship of fiduciary to beneficiary, we believe that no less disclosure is required of such parties when they come to court seeking to terminate their marriage.” (Emphasis added.) Billington v. Billington, supra, 220 Conn. 221. The point made in the foregoing passage is that the parties in a dissolution proceeding are in a relationship similar to, although not the same as, that of a fiduciary and beneficiary and, accordingly, they are obligated to make “full disclosure” of their assets,
II
The majority next concludes that the rule articulated in Maguire should be expanded to grant the trial court discretion to award attorney‘s fees as part of the financial orders when a party has incurred substantial legal expenses because of the other party‘s litigation misconduct and “the other orders of the court have not already adequately addressed that misconduct.” I disagree with this holding because it is inconsistent with the governing statutes, fails to recognize the numerous remedial provisions in our rules of practice that permit an award of attorney‘s fees as a sanction for discovery misconduct, and misapplies our well established case law on the matter.
The underlying premise of the majority‘s holding is that other means may be inadequate to compensate a party for the legal expenses incurred because of the other party‘s discovery misconduct, even when the financial orders leave the “innocent” party with sufficient liquid assets to pay such expenses without disturbing the trial court‘s other financial orders. The majority inexplicably fails, however, to examine the rules of practice specifically designed to compensate an “innocent” party when the other party abuses the
“[A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of § 13-14, impose sanctions . . . .” Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 14. In the present case, the court imposed $42,500 in attorney‘s fees and sanctions on the defendant for his lack of cooperation during discovery, describing them as “the largest sanctions I have issued in my two and a half years on the bench . . . .” The plaintiff did not appeal from those orders or claim that they were insufficient compensation for the additional time and effort expended by her attorneys to obtain the information she was seeking.
The court also granted the plaintiff‘s motion in limine, thereby accepting as an established fact for purposes of the action that the defendant improperly had transferred approximately $177,000 out of the marital estate to his girlfriend in Germany. Furthermore,
In addition, the statutory scheme does not permit an expansion of Maguire in the manner suggested by the majority.
Indeed, an award of attorney‘s fees to an “innocent” party, as suggested by the majority, would be inconsistent with the original justification for permitting such an award. In Steinmann v. Steinmann, 121 Conn. 498, 505, 186 A. 501 (1936), we stated that the purpose of awarding attorney‘s fees was to ensure that the wife would “not be deprived of her rights because she lacks funds which may be supplied from property in which as a wife she has a real interest but which is usually within the control of the husband. If, however, she possesses property of her own sufficient to pay the
The majority‘s insistence that an award of attorney‘s fees to compensate the “innocent” party for the other party‘s discovery misconduct is not punishment and does not amount to a sanction, but merely prevents the “innocent” party from being “unfairly burdened,” cannot sugarcoat or change the fact that an award of this nature is punitive in effect. The plaintiff herself described it as such at the hearing on her motion in limine, when she explained to the court: “I am going to ask the court for two sanctions, and one of them is going to come as part of our proposed orders. And that‘s that the defendant pay dollar for dollar [the plaintiff‘s] fees because had he not acted in as obstreperous a fashion as he had, this case would have been over and this case would have been done for far less attorney time, effort, and waste of [the plaintiff‘s] money.” The majority‘s attempt to portray an award of attorney‘s fees for discovery misconduct by the other party as less than punitive is simply disingenuous.7
In sum, I believe that there is no need to expand the rule articulated in Maguire because the rules of practice provide the court with many other tools to compensate the “innocent” party for the financial burden incurred as a result of the other party‘s misconduct. I agree with the majority that the conduct of the defendant in the present case was abhorrent and that his abusive behavior required the court to take appropriate action. I part company with the majority, however, when they suggest that our existing rules are inadequate and that the court failed or refused to employ them when it had the opportunity and obligation to do so. I would argue, to the contrary, that any suggestion that the court did not sanction the defendant for his discovery misconduct during the proceedings or account for his misconduct when fashioning its financial orders finds no support in the record. I would thus conclude that the trial court is not permitted by statute to make an award of attorney‘s fees in its financial orders to punish a noncomplying party, that existing remedies are adequate to address significant discovery abuse and that parties subject to such abuse have a responsibility to exercise their right to obtain relief pursuant to those remedies, as the plaintiff did when she sought and received both monetary and nonmonetary sanctions against the defendant and obtained financial orders that took his discovery misconduct into account. For all of these reasons, I disagree with the majority that the rule in Maguire should be expanded.
Notes
I disagree with the majority that the issue in this case is not whether the trial court abused its discretion, but “whether a trial court has the discretion to refuse to consider a party‘s motion for contempt.” In Ahneman v. Ahneman, supra, 243 Conn. 484-85, we declared that the trial court is duty bound to consider all matters brought before it except in “extreme, compelling situation[s],” or “other circumstances . . . .” Consequently, a trial court must exercise its discretion in determining whether the circumstances in any given case fall within one of the identified exceptions. See id. (court has “discretion to refuse to entertain or decide motions in order to prevent harassing or vexatious litigation . . . [or in] other circumstances” [citations omitted; emphasis added]). In reformulating the issue in the manner described, the majority avoids direct consideration of the question raised by the plaintiff on appeal, namely, whether the trial court abused its discretion when it marked the motion “off,” and fails to apply the proper legal principles in its subsequent analysis.
“(b) Such orders may include . . .
“(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence . . . .”
The plaintiff filed the motion in limine at the beginning of trial in response to the court‘s direction, during the September 9, 2002 hearing, in response to the plaintiff‘s contention that, despite the court‘s insistence to the contrary, she did not have “a core of good, vital information that [she could] work with,” that the plaintiff should “take [the defendant‘s] deposition in October and you ask some of those questions, and maybe we can zero in on some of this . . . .” The court then reiterated, however, what it already repeatedly had stated: “[I]t‘s time to try this case. That‘s the message I have for both of you.” The court also imposed a much more demanding standard for the plaintiff to meet after the deposition, instructing the plaintiff that the court would hear her then, but only if “there‘s something very, very specific as far as the discovery is concerned, I mean specific and vital, major case . . . .” (Emphasis added.)
The dissent‘s characterization of the trial court‘s decision as the “functional equivalent” of denying the plaintiff‘s motion without prejudice ignores the fact that the court set a much higher standard for the plaintiff to meet before the court would address the defendant‘s discovery misconduct. After the defendant had complied only partially at his deposition, therefore, the plaintiff filed her motion in limine at the beginning of trial in an attempt to meet that higher standard. The dissent also contends that the plaintiff in effect waived any procedural defect by agreeing, at the beginning of the trial, to the trial court‘s suggested procedure on her motion in limine. This contention wholly ignores the procedural context at that point, because it ignores the significance of the fact that the plaintiff was compelled to seek relief at the very outset of trial, rather than prior to it—namely, that the delay in the availability of relief for the defendant‘s discovery abuse changed the very nature of the relief that she was able to request from the court. It would have been, as a practical matter, impossible for the plaintiff to renew her motion for contempt at that time, particularly given that the trial court had set a higher standard for her to meet in seeking further relief. At that point, therefore, any renewal of the plaintiff‘s August 12 motion for contempt would have been pointless, as well as any objection she may have raised regarding the trial court‘s decision to refuse to consider that motion.
Moreover, we disagree with the dissent that the plaintiff‘s failure to renew her request for sanctions following the deposition of the defendant, or to request a new judge at the time of trial, signifies that the plaintiff had not construed the court‘s decision to mark off her August 12 motion for contempt as an absolute refusal to consider the motion. On the contrary, the plaintiff‘s failure simply to renew her request for sanctions following the defendant‘s deposition signifies that she did understand the trial court‘s refusal to consider the August 12 motion to be absolute, unless she could meet the higher bar. Furthermore, the plaintiff was under no obligation to request that the case be assigned to a new judge. Such a request would have prolonged the matter even further.
The court determined that it was unnecessary to grant the relief requested pursuant to the plaintiff‘s motion in limine because, in its opinion, the defendant was not contesting the transfer to Meyer, and, therefore, the fact of the transfer had been “established to [the] court‘s satisfaction.”
The sum of the trial court‘s statements in its memorandum of decision with regard to the attorney‘s fees were: (1) “The court finds that each party has sufficient liquid assets and each party shall be responsible for their separate attorney‘s fees and costs incurred in connection with this action. Maguire v. Maguire, [supra, 222 Conn. 32].“; and (2) “Each party shall be responsible for their respective attorney‘s fees and costs incurred in connection with this action.”
As we already have noted, the plaintiff filed multiple motions for contempt and for sanctions for the purpose of obtaining compliance. These consisted of the following motions of the plaintiff and orders of the court: (1) motion for compliance dated October 2, 2000, granted by the court; (2) motion for contempt dated February 5, 2001, for failure to comply with the court‘s October 2, 2000 order, on which the parties stipulated and the court ordered compliance by the defendant within seven days; (3) a second motion for contempt, dated July 6, 2001, for the defendant‘s failure to comply with the February 5, 2001 order, and a July 23, 2001 order of the court to the defendant to comply fully within thirty days and to pay the plaintiff $2500 in attorney‘s fees if the plaintiff determined that he had not fully complied; (4) a third motion for contempt for the defendant‘s failure to comply with the July 23, 2001 order, and an order by the court for the defendant to pay the plaintiff $25,000 in attorney‘s fees and an additional $15,000 as a retainer for the costs of future discovery; (5) the defendant‘s motion to reargue the plaintiff‘s third motion for contempt, dated February 1, 2002, resulting in an order of discovery mediation with a special master, and an order of the court denying the defendant‘s motion to reargue and a further order that the defendant comply, within two weeks, with the court‘s earlier order to pay $2500 in attorney‘s fees; and (6) the plaintiff‘s final pretrial motion for contempt, filed August 14, 2002, which the court refused to consider.
These “other persons” were Landgren and Meyer; the plaintiff testified that the defendant had maintained sexual relations in Europe with both of these women while married to the plaintiff.